COURT RECORDS

"Reports of cases in law and equity argued and determined in the Supreme Court of Georgia at Atlanta, in parts of July term 1872 and January term 1873" by Henry Jackson; Georgia Reports, Vol.47, pgs.445 to 452 (California State Law Library, Sacramento, 2/2004)C. C. DUNCAN, administrator, et al., plaintiffs in error, v. SALLIE POPE, by her next friend, defendant in error; Supreme Court of Georgia; 47 Ga. 445; July, 1872, Decided.
Illegitimate child. Partition. Consideration. Escrow.
Delivery. Exceptions. Before Judge Cole. Bibb Superior Court. October Adjourned Term, 1871.
Sallie Pope, a minor, by her next friend, William Bishop, filed her bill containing substantially the following allegations: That she is the illegitimate child of James S. Pope, deceased, and so acknowledged by him to be; that her said father during life always treated complainant indulgently and kindly, and frequently openly averred his intention to give to complainant a large portion of his estate at his death, to supply her wants and to preserve her from suffering and poverty; that her said father was prevented from carrying into effect this often expressed intention by his sudden and unexpected death, which occurred in 1866; that said death was so sudden as to prevent the execution of a will; that her father left property to the value of $20,000.00, and the defendant, C. C. Duncan, was duly granted letters of administration upon said estate; that though complainant, under the law of Georgia, cannot inherit said property yet she is entitled to be supported, maintained and educated during the period of her minority out of the property of the estate of her said father; that she had applied to said Duncan to have said support set aside; that complainant and her mother had been placed by the said James S. Pope, during life, in possession of a certain house and lot in the city of Macon, and that complainant, by her tenant, is still in possession of said property; that in response to the application of complainant, Duncan made some indefinite promise to convey in fee simple to complainant said property, but would never execute any conveyance; that complainant placed the matter in the hands of Simmons & Bacon, attorneys at law, to secure her rights in the Courts; that upon being approached by complainant's said attorneys, said Duncan agreed to convey said property in trust for her, but postponed the execution of a deed for a few months, until the heirs of said Pope, deceased, should become of age; that subsequently to said arrangement complainant, by her attorneys, discovered that Stephen and A. P. Collins owned a two-sevenths interest in said property; that upon the representation of Duncan that said interest could be purchased for a trifling sum, complainant did not then repudiate the agreement; that complainant was not informed at the time of said negotiations that there was a bill pending in Houston Superior Court, filed by Stephen Collins and A. P Collins against the said C. C. Duncan, administrator, for the partition of said property, and for the recovery of the rent; that said Stephen Collins and said Duncan had had repeated conversations with complainant's solicitors in reference to the conveyance of said property to her, and had carefully concealed from her the pendency of the aforesaid litigation; that said Duncan and Stephen and A. P. Collins combining and confederating together for the purpose of defrauding complainant in the premises, at the last term of Houston Superior Court, entered into a consent decree that said house and lot be sold for partition, and that two-sevenths of the proceeds of said sale be paid to the said Stephen and A. P. Collins, and the sum of $125.00 for rent of said two-sevenths also to be paid out of the proceeds of sale; that under said decree, James Martin, sheriff of Bibb county, has levied upon and advertised said property for sale on Tuesday, the 5th day of April; that after the aforesaid decree had been taken, Duncan sent to complainant a quit claim deed to said property, signed by the heirs of her deceased father, at the same time communicating the facts as to said decree, which was the first information that complainant ever received that said bill was or had been pending; that the date to said deed is showed, and appears to have been changed from January 4th, 1870, to February 28th, 1870, so as to give effect to the same subsequent to the time of said consent decree; prayer, that defendants may be enjoined from further proceeding under said decree, or from transferring the same, or from conveying said property to any third person until the further order of the Court; that Duncan may be required to account with Stephen and A. P. Collins for whatever amount may be due them, and to convey said property to complainant free from any incumbrance or claim whatever, or that such sum of money be paid to the use of complainant as may be necessary for her support, maintenance and education during her minority.
The joint answer of the defendants, Stephen and A. P. Collins, admitted most of the allegations of the bill, but denied that they had combined or confederated with Duncan to defraud complainant, and also alleged that in the entire transaction as to the house and lot they alone negotiated with Duncan, and had no connection whatever with complainant, regarding her as having no interest whatever in the property; prayer, that their answer may be considered as a cross-bill, and that two-sevenths of said house and lot be decreed to be the property of defendants, and that the same be sold for partition and defendants' share be paid to them, with rent from August 1st, 1866.
The defendant, Duncan, answered the bill, substantially, as follows: that soon after the death of said Pope, a colored woman named Josephine, formerly the property of James Ralston, called on defendant, and represented that she had an illegitimate child by said Pope; that said Pope had promised to provide for said child, and she thought some provision ought to be made; that said child, who is complainant, was at that time six or seven years of age, and when born, was the property of James Ralston; that said woman represented to defendant that if he would give to her certain articles of personalty and the interest then owned by Mr. Pope's estate in the house and lot mentioned in complainant's bill, that it would be satisfactory to her and her child; that defendant consented to the arrangement and delivered to her the personalty, and authorized his agent to place her in possession of the house and lot, she agreeing to pay Messrs. S. and A. P. Collins their proportion of the rent, and, under no circumstances, to encumber the estate of said Pope with the payment of said rent; that at the time this agreement was entered into, it was well understood by said woman, Josephine, that Mr. Collins owned two-sevenths interest in said house and lot; that defendant refused to execute a deed, as administrator, but promised that the heirs of Pope should do so as soon as they attained to the age of twenty-one, no rent being charged against said Josephine in the meantime; that in accordance with instructions from said Josephine, defendant forwarded said deed, when executed, to Messrs. Bacon & Simmons, whom he understood to represent said woman and her said child; that in July, 1868, said A. P. and S. Collins filed their bill in equity in Houston Superior Court for partition of said premises and for rent, and at July term, 1870, a decree for partition was rendered, and also a decree for $125.00 for their proportion of the rent; that defendant always understood that Messrs. Bacon & Simmons represented the woman Josephine, as well as complainant; that Messrs. Bacon & Simmons received said deed with the understanding that it was to be in full of all claims against Pope's estate, but yet said attorneys still retain the deed and continue the case.
The Court charged the jury as follows:
"If the evidence satisfies you that Sallie Pope was the illegitimate child of J. S. Pope; that he had recognized and adopted her as his child, and had promised to provide for, support, maintain and educate her, such relationship and promise was good and binding on him and on his estate, it being alleged in the bill, admitted in the answer, and proven that Mr. Pope had no legitimate child and wife, and that he had promised to provide for this child, and the administrator having undertaken to carry out this promise, he is bound to do it in good faith. If you believe that the title executed to her by the administrator and the heirs of Mr. Pope was defective, and did not convey to the child the whole property according to the agreement and undertaking, then you may decree that the administrator make a good title to the whole lot, or you may decree that he pay to her the value of the lot as proven. You will take the case and decide it according to the law as I have given it to you and the evidence produced to you."
The jury returned the following verdict: "We the jury find and decree, that C. C. Duncan, administrator of the estate of J. S. Pope, pay to William Bishop, next friend of Sallie Pope, the sum of $800.00, and that the said described property be sold by the sheriff of Bibb county for partition; that of the proceeds of said sale, two-sevenths shall be paid to A. P. and S. Collins for their interest in said property, and that said C. C. Duncan, administrator, shall pay to said A. P. and S. Collins the sum of $227.05 for rent of said two-sevenths of said property from the 1st day of August, 1866, to February 1st, 1872."
The defendant, Duncan, moved for a new trial upon the following grounds, to-wit:
1st. Because the verdict is contrary to the evidence.
2d. Because the verdict is contrary to law and equity in this, that there was no evidence to sustain or show any contract between complainant and J. S. Pope, deceased, or with said C. C. Duncan, his administrator.
3d. Because the Court erred in his said charge to the jury.
The evidence is not incorporated as it is unnecessary to an understanding of the decision of the Court.
Certain exceptions were filed to proceedings had subsequent to the trial by Messrs. S. and A. P. Collins, based upon facts which the Court refused to certify, and are, therefore, omitted.
The motion for a new trial was overruled, and plaintiffs in error excepted and assign said ruling as error.
[Opinion] MONTGOMERY, Judge. Section 1789 of the Revised Code announces that a father is bound to support his illegitimate child. If he voluntarily make a contract for its support, the obligation is a sufficient consideration to sustain it, and no doubt it may be so made as to bind his representatives. The law, however, does not extend the obligation to the latter, in the absence of any such contract. A mere statement by the father of his intention that the child is to be supported out of his estate after his death, does not amount to such a contract. If the father fail to support the child voluntarily, the law points out the mode by which he may be compelled to enter into a contract for its support: Code, 4664, et seq. The mode here provided necessarily contemplates proceedings against him (not against his representatives) by the officials whose duty it is to see that the child does not become chargeable to the county. The law nowhere provides for a suit in behalf of the bastard for such support, either against the father or his representatives, not founded on some contract. A husband is bound to support his wife: Code, 1747; a father, his legitimate child: Code, 1783. It has never been contended that the enunciation of these principles in the Code gave the wife or child the right to enforce the obligation by suit. Section 1789 of the Code gives no right not in existence before its adoption. The section is but the embodiment of the legal principle applicable to such cases, and which had, therefore, been of force.
The heirs of the putative father in this case having made and delivered to the bastard a deed of all their interest in a piece of realty held by the ancestor in his lifetime, in common with another, of course their interest, and no more, passed by the conveyance, and entitles the grantee to a partition as between herself and the other tenant in common.
But the administrator has no power to bind the estate by promising to extinguish the title of the other tenant in common for the benefit of the bastard. The obligation to support the bastard, as already shown, is a valid consideration to support a contract made by the father for that purpose. It will not support the promise of his administrator to do so.
An escrow, ex vi termini, is a deed delivered to some third person, to be by him delivered to the grantee upon performance of some precedent condition by the grantee or another, or the happening of some event. If delivered to the grantee, or his agent, the delivery is complete, and the paper is not an escrow: Jordan v. Pollock, 14 Ga. 145; Wellborn v. Weaver, 17 Ga. 267; Code, 2651. It follows, that the delivery of the deed to Messrs. Simmons & Bacon, the attorneys of the bastard, carried the complete title in the property granted to the grantee divested of all parol conditions.
On the hearing before this Court, the counsel for the administrator objected to the verdict and decree, upon the ground that the record showed that the administrator, the substantial defendant in the case, was not a resident of Bibb county, in which the action is brought, but of Houston, and should have been sued in the latter county. This objection was not made in the Court below, and this Court, being a Court for the correction of errors only, cannot now entertain it.
Judgment affirmed, with the following direction: That so much of said decree as requires C. C. Duncan, as administrator of J. S. Pope, to pay to William Bishop, next friend of Sallie Pope, the sum of $800.00, be set aside, and that on the decree of the jury, judgment be entered up that the sheriff sell said land for partition, and that two-sevenths of the proceeds of such sale be paid to the defendants, Collins, and the remaining five-seventh to such person as the Court may appoint as trustee for Sallie Pope, and that C. C. Duncan, as administrator as aforesaid, pay to said S. and A. P. Collins the sum of $227.85 for rent of said two-sevenths of said property from the 1st day of August, 1866, to February 1st, 1872.

Bibb Co. GA Deeds & Mortgages
A-117: 23 Dec. 1822, Isaac Duncan Senr. of Jones Co. GA to John Rushin Sen. of same, $103 paid to Duncan as attorney in fact for Elijah Mattox, lot 185 in 5th Dist. orig. Houston Co., 202-1/2 acres on Jeheconna Creek, granted to John Lankford of Padgetts Dist., Tatnall Co., on 19 July 1822; wit. John Kinney, Jesse Cox. (FHL film 382,002)
A-118: 20 March 1822, power of attorney, Elijah Mattox of Tatnall Co. GA appoint Isaac Duncan Senr. of Jones Co. GA, attorney to procure title to lot 185 in 5th Dist. of Houston Co.; wit. J. Rushin. (FHL film 382,002)
C-298: Talbot Co. GA; 2 Dec. 1830, Robert Duncan of said county to John Horn in Monroe Co. GA, $100, 202-1/2 acres in Houston Co., 4th Dist. when surveyed, now Bibb Co., lot #37; wit. Eliot Wright, Jonathan Matthews. (FHL film 382,003)
C-365: Wilkinson Co. GA; 8 March 1828, James Gibson of Wilkinson Co. GA to Robert Duncan of Talbot Co. GA, $200, 405 acres in Houston Co. when surveyed now Bibb Co., Lot #37 in 4th Dist. and #241 in 3rd Dist.; wit. G.M. Duncan, Joel Rivers. (FHL film 382,003)
Deed Book D not available on microfilm at FHL
H-303: 3 Jan. 1843, per writ of Fieri Facias issued out of Chatham Co. Justice Court suit of Charles P. Goodrich vs. Edwin P. Starr, Sheriff Benjamin Trapp sold land to highest bidder 3 Jan. 1843, deed to Abraham Duncan for $26, 202-1/2 acre lot #175 in 4th Dist. originally Houston now Bibb Co.; wit. Clarke Brown, Aaron Sepal (Sessel?) JP. (FHL film 382,007)
I&J-51: 9 Nov. 1844, James Martin of Bibb Co. GA to Leven Duncan of Houston Co. GA, $225, 50 acres, being SE corner of Lot #171 in 4th Dist. formerly Houston now Bibb Co.; wit. Abraham (X) Duncan, Aaron Sessel (Sepel?) JP. (FHL film 382,007)
L-137: Pulaski Co. GA; 21 Oct. 1850, Alexander B. Duncan of Lee Co. GA for $5, quit claim to James H.R. Washington of Bibb Co., all right to a lot of land on the Macon River known as the lot whereon Blackshear Bryan formerly resided and occupied by said James H.R. Washington, of 37 acres purchased at administrator sale of estate of said Bryan by said Washington; /s/ A.B. Duncan; wit. Henry R. Beirs, Daniel Matthews. (FHL film 382,008)
L-137 (2nd): Pulaski Co. GA; 21 Oct. 1850, Joseph M. Bryan of Twiggs Co. GA for $5 quit claim to James H.R. Washington of Bibb Co., all right to a lot of land on the Macon River known as the lot whereon Blackshear Bryan formerly resided and occupied by said James H.R. Washington, of 37 acres purchased by said Washington at the administrator's sale of said Blackshiar Bryan decd my father; wit. William Robuck, John Finney. (FHL film 382,008)
BB-526: 8 July 1848, Leven Duncan of Bibb Co. GA for $50 to Southwestern Railroad Co. of GA, right to construct a railroad through part of Lot 171 in 4th Dist., 75 feet on either side; wit. F.P. Holemet, John A. Dowell; rec. Jan. 26, 1880. (FHL film 382,018) (MAD: cataloged as Book Y on FHL film 382,017, Book Z on film 382,018, and Books AA & BB on film 382,019; Book Y actually on film 382,019, Books CC & DD actually on film 382,017)

Bibb Co. GA Deeds, Book D (images and partial transcript from Dean D. Duncan 11/30/2010 to 12/16/2010, from his personal visit to the courthouse in Macon, GA)
Dean D. Duncan comments: Book D pages were photocopies of the big original sheets, shrunk down to 8 1/2 X 11, but readable; scanned with a hand-held scanner.
D-455/456: Bibb Co. GA; Alexander Shotwell of Lee Co. GA for $1500 paid by James E. Duncan of Houston Co., (MAD: no state given), have sold to said James E. Duncan his heirs and assigns forever, a certain piece or parcel of land in the vilage of Vineville in Bibb Co. GA, containing about 7 acres of land more or less, bounded beg. at a post on the great market road leading from Macon to Forsyth (part of image missing) Fort, then running up said road towards Forsyth 225 feet to a post on the corner of a 20 foot alley, which alley extends from the said Forsyth road nearly a south or south southwest course to the line of lands owned by Leroy Napier, and separates the aforesaid lot from lands now owned by Alford Clopton but lately held by Job Magio, then from the post on the corner of said described alley nearly a south or south southwest course along the line of said alley about 1200 feet as is supposed, to this line of said Napier's land, be the distance more or less, then along the line of said Napier's land nearly an east course, 225 feet, then along the line of lands of Robert W. Fort nearly a north northeast course about 1200 feet as is supposed, more or less, to the post on the Forsyth road before mentioned as the place of beginning. Also a small strip of land beginning at the eastern corner of said Napier's land which constitutes the southern boundary of the before described lot of land, then running nearly a south or southwest course until it crosses a branch or small stream, then nearly an east course until it comes opposite the north northeast line of the before described lot, then running nearly a north northeast course until it intersects the south southeastern corner of the lot herein first described; also all my right, title and interest to the land which constitutes the 20 foot alley hereinbefore described as dividing the lands of Clopton and the lot herein first described as conveyed by these presents. To have and to hold the above granted and bargained land ... belonging to him the said James E. Duncan his heirs and assigns ... And that I the said Alexander Shotwell for myself, my heirs, Executors ... do covenant to and with the said James E. Duncan his heirs that I am lawfully seized in fee simple and they are free from all incumbrances ... warrant title. 15 June 1835, /s/ Alexander Shotwell, witness: Edwin B. Gould, Geo. Wood, N.P. B.C. Recorded Feby 12, 1836.
D-457: Bibb Co. GA, Quit Claim deed. 3 June 1835, James Patrick to James E. Duncan of Houston Co. state aforesaid, for $1500, relinquish and sell to said James E. Duncan that certain lot of land and premises in Vineville, beg. at a post on the great market road leading from Macon to Forsyth on the line of land of Robert W. Fort, then running up said road towards Forsyth 225 feet to a post on the corner of a 20 foot alley which extends from sd. Forsyth's road nearly a south or southwest course to the line of lands owned by Leroy Napier, and separates the aforesaid lot from lands now owned by Alfred Clopton but lately held by John Magio, then from the post on the corner of said alley nearly a south or southwest course along the line of said alley about 1200 feet as is supposed to the line of said Napier's land, more or less, then along the line of said Napiers land nearly an east course 225 feet, then along the line of lands of Robert Fort nearly a northeast course about 1200 feet more or less to the post on Forsyth road before mentioned as the place of beginning, also a small strip of land beginning at the eastern corner of sd. Napier's land which constitutes the southern boundary, then running nearly a north or northeast course until it intersects a? south southeastern of corner of lot herein first described; ... said James Patrick will warrant title ... /s/ Jas. Patrick. Wit. W.M. Pope, Geo. Wood NP Bibb Cy. Recorded Feby 12, 1836.
D-458: Bibb Co. GA; Indenture 10 Nov. 1835, James E. Duncan of Houston Co. to Benjamin B. Lamar of Bibb Co., for $2,000 paid by said Benjamin B. Lamar, receipt acknowledged, sell to said Benjamin B. Lamar all and singular the following tract or parcel of land in state and county aforesaid in Town of Vineville, containing 7 acres more or less, bounded beg. at a post on the great market road leading from Macon to Forsyth, on the line of land of Robert Fort, then running up said road towards Forsyth 225 feet to a post on the corner of a 20 foot alley which extends from the Forsyth road nearly a south or southwest course to the line of lands owned by Leroy Napier & separates the aforesaid lot from lands owned by Alfred Clopton but lately held by Job Magio, then from the post on the course of said described alley, nearly a southwest course along the line of said alley about 1200 feet as is supposed to the line of said Napiers line, then along the line of said Napiers land nearly an east course 225 feet, then along the line of lands of Robert Fort nearly a north northeast course 1200 feet as is supposed to the post on the Forsyth road before mentioned as the place of beginning. Also a small strip of land beginning at the eastern corner of said Napiers land which constitutes the southern boundary of the before described lot of land, then running nearly a south or southwest course until it crosses the branch, then nearly an east course until it comes opposite the north or northeast line of the before described lot, then running a north northwest course until it intersects the southeast corner of the lot herein first described. All my right, title and interest to the 20 foot alley before described as the dividing line between the aforesaid premises & the lands of said Clopton. To have and hold ... in fee simple. Warrant title. /s/ James E. Duncan. Wit. John B. Ulick, John Lamar. Personally appeared John Lamar as a witness (next page not copied.) Recorded Feby. 12, 1836.

Pension Index Card File, alphabetical; of the Veterans Administrative Contact and Administration Services, Admin. Operations Services, 1861-1934; Duff to A-J Duncan (FHL negative film 540,888, some cards very faint); Joseph Duncan to Dunn (FHL positive film 540,889, some cards very dark)
Cataloged under Civil War, 1861-1865, pensions, indexes; does not say if Confederate or Federal, but probably Federal. Negative film, some cards much too faint or dark to read, some cards blurred or faded, particularly the service unit and the dates of application. Most of the very faint or dark cards were in a slightly different format, with space for years enlisted and discharged which were sometimes filled in. Many of these were for service in later years, although one or two were for service ca 1866.
Name of soldier, alias, name of dependent widow or minor, service (military unit or units), date of filing, class (invalid or widow or minor or other), Application #, Certificate #, state from which filed (sometimes blank), attorney (sometimes blank, MAD: did not usually copy), remarks. Sometimes the "Invalid" or "Widow" class had an "s" added to it before the application #; occasionally the area for the service information included a circled "S". The minor's name was frequently that of the guardian rather than the minor.
The military unit was frequently the Company Letter, the Regiment Number, sometimes US Vet Vol Inf. (US Veteran Volunteer Infantry), L.A. (Light Artillery), H.A. (Heavy Artillery), US C Inf (US Colored? Infantry), Cav. (Cavalry), Mil. Guards, V.R.C. (?Volunteer Reserve Corps?), etc. Sometimes there were several service units given.
Cards appear to be arranged by the last name, first name, middle initial if any, and state (including "US") of service.Duncan, Lindsey C., widow Duncan, Mary I.; G 4 KY Mtd. Inf.; 1881 March 14, Invalid Appl. #417248, Cert. #407225, KY; 1905 Dec. 19, Widow Appl. #839891, Cert. #611053, KY. (MAD: 1850 Whitley Co. KY census, 1860 Madison Co. KY census; mustered in at Macon, Bibb Co. GA)

HISTORIES before 1923

1906 "Georgia : comprising sketches of counties, towns, events, institutions, and persons, arranged in cyclopedic form" or "Cyclopedia of Georgia" by Allen D. Candler and Clement A. Evans, Vol.1 (from Evelyn Sigler 1983 and Ray Duncan 1991; FHL book 975.8 A7c and films 1,000,160 and 896,883 item 1)
Pg.634: Duncan, a post-hamlet of Liberty County, is ten miles southeast of Hinesville. Riceboro is the nearest railway station.
Pg.634: Duncan, George Washington, is engaged in the real-estate and loan business in the city of Macon, ... He was born in Greenville, Greenville Co. SC, Feb. 22, 1852, a son of Perry Emory and Mary Anne (Hill) Duncan, the former born in Greenville, SC, in 1800, and the latter in Wilkes Co. GA in 1814. The Duncan family is of stanch old Scottish stock, the great-grandfather of the subject of this review having immigrated to America from the "land of hills and heather" and settled in Virginia, whence he later removed to South Carolina. His son, grandfather of George W., was a loyal soldier in the Continental line in the war of the Revolution, having taken part in the battles of Cowpens, SC, King's Mountain, NC, and other engagements. Perry E. Duncan amassed a very considerable fortune, owned a fine plantation, about five miles northwest of Greenville, and was also the owner of a large number of slaves prior to the Civil war. He also had a large cotton plantation seven miles below Albany, Dougherty Co. GA where the family passed the winter seasons. He was a Union man when the matter of secession was brought up, but when South Carolina seceded he gave to the state his unqualified support, ... His advanced age rendered him ineligible for active service in the army of the Confederacy, but three of his sons were loyal and faithful soldiers ... and one of the number, Col. Robert Perry Duncan, was promoted chief of staff to Gen. R.H. Anderson, of South Carolina. Perry E. Duncan was a man of prominence ... The parents of George W. Duncan died while he was still a boy. His early education was secured at West Point, Miss., and Wilkes Co. GA, after which he continued his studies in Oglethorpe university near Milledgeville. ... On Jan. 23, 1884, was solemnized the marriage of Mr. Duncan to Miss Carrie Tracy Johnston, daughter of Col. William B. and Annie Clarke (Tracy) Johnston of Macon. Concerning the children of this union the following brief data are given: George W., Jr., was born in 1886, and is now attending the US naval academy at Annapolis, Md.; Anne Tracy was born in 1888 and is now a student ...; John Baxter was born in 1890 and graduated in the high school of Macon ... 1906 ....